What’s Next For Marijuana Legalization

JUDY WOODRUFF: Lost amid November’s election results was the large number of states that legalized the use of marijuana for either recreational or medical purposes.

The results spell one of the biggest shifts in U.S. drug policy in decades, but significant questions remain.

William Brangham has the story.

WILLIAM BRANGHAM: Legalizing marijuana was on the ballot in nine different states in this past election. And except in Arizona, they all passed. Four states, Montana, North Dakota, Arkansas, and Florida, voted to legalize use of marijuana for certain medical conditions. And four other states, Maine, Nevada, Massachusetts, and California, legalized marijuana for anyone 21 years and over.

This means that millions more people will be able to purchase marijuana in sanctioned state-approved shops, but, according to federal law, the drug is still illegal, and the Trump administration could choose on day one to start enforcing that law.

To help us understand the complexity of all this, I’m joined now by Taylor West, who is the deputy director of the National Cannabis Industry Association, and John Hudak, who studies drug policy, among other things, at the Brookings Institution.

Welcome to you both.

Taylor, I would like to start with you first.

Election Day had to be an enormous day for your industry. Do you think of this as a tipping point going forward?

TAYLOR WEST, Deputy Director, National Cannabis Industry Association: Absolutely. This was a watershed day for the industry of cannabis, but also for cannabis policy in the U.S.

We saw, as you said, eight states vote for some form of legal, regulated marijuana program. We now have 20 percent of the country living in a state that has access to legal marijuana, and more than 60 percent of the country living in a state that has legal access to medical marijuana.

This is in line with what we have seen from public opinion polls, so it really does reflect the direction that the country is moving on these issues.

WILLIAM BRANGHAM: John Hudak, tipping point? Do you think this is just the inevitable roll of this sort of policy going out across the country?

JOHN HUDAK, Brookings Institution: This was absolutely the biggest day of the marijuana reform hands-down.

In terms of it being a tipping point, it’s a bit hard to tell. I think, in the short term, we’re not going to see much movement at the federal level. What happened in this election was big for marijuana. But what also happened was the status quo in Congress, the same leadership in Congress, who, frankly, is opposed to reform.

But what this change in the landscape of marijuana policy can do is to start to embolden the industry, to start to get the industry having a stronger voice, a more powerful voice, and a more powerful economic voice to eventually move policy in the right direction toward their interests in reform.

WILLIAM BRANGHAM: John, staying with you, I mean, as I mentioned in the introduction, this is still illegal as far as the federal government is concerned. And the Obama administration put out a memo basically saying to states, if you guys run a tight ship, we’re not going to interfere in what you’re doing.

Now, the Trump administration could come and undo that memo in an instant. Do you think that we’re going to see that? What do you imagine when Trump takes over that that administration is going to do with regards to marijuana?

JOHN HUDAK: President-elect Trump has voiced some interest in keeping the status quo when it comes to medical marijuana. His words around recreational marijuana have been less firm.

So, I think, right now, we don’t know for sure what Donald Trump will do on marijuana. I think that’s true on a lot of policy areas, but it’s true with marijuana. I think his attorney general pick is one that worries industry. He’s a vowed prohibitionist.

WILLIAM BRANGHAM: This is Jeff Sessions.

JOHN HUDAK: Jeff Sessions from Alabama.

He’s someone who has injected subjective judgment onto not just marijuana, but the marijuana user. So, I think however much leash that Donald Trump gives his attorney general will determine whether the Obama doctrine on marijuana holds the day or whether we see a real transformation back to years past.

WILLIAM BRANGHAM: Taylor, as John points out, Jeff Sessions, who likely will be the attorney general, has been very clear that he doesn’t like what states all over the country are doing with regards to recreational marijuana. Does your industry worry that, come January, you might all of a sudden face federal enforcement?

TAYLOR WEST: It is certainly something that we’re keeping an eye on.

The fact is that, during the campaign, as John mentioned, president-elect Trump said on multiple occasions that he really did see this as a state issue, and that programs in the states that have been chosen by the voters should be allowed to move forward.

Certainly, Senator Sessions has expressed his personal opinion on issues around marijuana, but the reality is that Senator Sessions has also on many occasions been a strong advocate of state sovereignty and the concept of federalism.

So I think there really is a nexus of agreement there on the idea that a program chosen by the voters of the state working in the way that it’s meant to ought to be respected.

Now, as John said, there’s still some uncertainty about exactly which direction any of these policies will go, but we do see that sort of path forward.

WILLIAM BRANGHAM: John, let’s take Taylor’s point. Let’s assume that the federal government doesn’t interfere.

Aren’t we still going to see conflict, though, between federal law and state law? There are still other problems. I mean, banks, for instance, can’t take marijuana money. And that causes a huge problem for the industry. Those things have got to get worked out eventually. Right?

JOHN HUDAK: The reforms that have happened during the Obama administration have allowed the industry to really get up and running and have cover, feel safe that what they are going to do will be protected from federal intervention.

But, at the same time, the Cole memos, which have really taken this enforcement discretion to a formal stance from the Obama administration policy, does create these unintended consequences around taxes, around banking, around interstate access, around a variety of issues that can be very challenging for the industry.

Those are going to need to be addressed eventually. We just don’t know when that will happen.

WILLIAM BRANGHAM: Taylor, we have seen already Colorado and Washington have had a period of time where their legalization infrastructure has been built, their licensing, their taxing, their selling.

Do those states’ experience over the last years or so give us any sense of how this is going to go forward for other states that are just trying this out?

TAYLOR WEST: Well, I think there are a couple important lessons to take from what we have seen in places like Colorado and Washington.

The biggest one is that, by and large, this works, that these programs have been implemented successfully. We haven’t seen the major issues that opponents were concerned about. The sky hasn’t fallen.

And then a secondary lesson to that is that, when there have been problems that have arisen, the legislature and regulators have been able to address them. That’s something that you don’t get in an unregulated system.

And I think that’s an important thing for states that are now embarking on these programs to realize, that they have given themselves the power to shape this industry in their states as it grows.

So, those are things that I think are important, both from the state implementation standpoint and something that’s important for the federal leaders to remember as well. Turning back the clock on this doesn’t just end regulated sales. It really sends them back into a criminal market that we have very little control over.

WILLIAM BRANGHAM: John, last question for you.

What happens on the legal front? If people are — now have a criminal record because of marijuana sales or possession, or are in prison for marijuana sales or possession, do these legalization schemes have any say in that? Does anyone get their record expunged or looked at again?

JOHN HUDAK: Some of the legalization efforts have put these issues at the forefront.

California, for instance, built into its initiative the ability of individuals who were arrested and charged with low-level marijuana offenses, effectively what were formerly offenses that would now be considered legal in California, to go to court and ask for their record to be expunged.

Now, those are very specific circumstances. They obviously couldn’t be done in conjunction with violent crimes or larger crimes. But these are issues that affect particularly communities of color and create barriers to economic opportunity, barriers to educational opportunity, and have really long-term effects on an individual who faces criminal justice through this process.

And so some states have really spearheaded the ability to do this, but as more states have come online, that conversation has broadened and these criminal justice reform issues have become not dominant, but at least pushed to the front of the line in terms of issues that are talked about. And I think that’s a very important part of this.